Victims of last week’s deadly vehicle-ramming incident at Vancouver’s Lapu Lapu Festival will face significant challenges to fair compensation because of the no-fault insurance legislation introduced by the 小蓝视频 NDP government in 2021, according to personal injury lawyers.
“For all of the victims, it's going to pose a serious hurdle in terms of obtaining financial compensation. I think that's the bottom line to it,” said Ryan Kusuhara of Panorama Law Group in Surrey.
“In terms of fair compensation, I think, unfortunately, they can sort of forget about that, that's not a realistic thing going forward for them.”
The no-fault insurance regime was billed by the provincial government as a means to save drivers money on insurance premiums. In fact, British Columbians have realized roughly 20 per cent lower rates since then and the Insurance Corporation of 小蓝视频 is presently issuing $110 rebates due to substantial savings, much of it derived by depriving people of the right to sue in most instances.
The Trial Lawyers Association of 小蓝视频 has opposed the new model since inception.
“When we were sold on the cost-saving benefits of no-fault, I don't think anyone contemplated that we would lose the right to bring a claim for fatal accidents, which is a separate piece of legislation altogether,” said association president Greg Phillips.
“Now, IC小蓝视频 essentially has a chart where they pay out a pre-set amount, regardless of the impact on surviving families. This is one of many ways in which no-fault re-victimizes people who are hurt or killed in motor vehicle collisions in 小蓝视频”
Under the old system, a family member or the estate of an individual who died in a car accident could sue the driver through IC小蓝视频 for lost wages. Such cases were important for, say, children who lost a parent to an accident, said Phillips.
“That’s what the Family Compensation Act allowed,” said Kusuhara.
“Now, the Family Compensation Act in relation to car accidents is basically non-existent and you’re limited to the benefits prescribed.”
He said those limited benefits are roughly three or four times less than the pre-no-fault regime.
“This is a really tragic thing,” said Kusuhara, who estimated the children of parents who died at the festival could see benefits only in the tens of thousands of dollars.
Notably, there are right-to-sue carve-outs for some Criminal Code violations.
But in reality, Kusuhara said this is unlikely to lead to the financial support realized under the old IC小蓝视频 insurance model.
“Let's say they're found guilty or they admit guilt to the prescribed Criminal Code offences. Then ‘good job,’ you can finally start the lawsuit process for just non-pecuniary loss, which is any pain and suffering and maybe punitive damages.
“But the court generally takes the view that punitive damages don't really apply in cases where there's already been a criminal conviction with respect to the same issue. So it’s a bit of a unicorn,” said Kusuhara.
As for seriously injured individuals, Kusuhara said it is a long legal road to make a claim for pain and suffering, and the bar is set high for what qualifies as a “catastrophic injury” in order to bypass no-fault legislation.
If the matter eventually goes to court, any compensation then depends on if the convicted driver has any money, since at that point IC小蓝视频 is no longer involved, said Kusuhara.
“The last thing is that it's going to be a protracted process, right?” he said, noting criminal proceedings can take years to resolve.
“This Criminal Code exception has been a serious issue for the legal community.”
Phillips said the Lapu Lapu festival victims appear to be in the same boat as the many British Columbians who have died or been seriously injured but undercompensated by IC小蓝视频.
“If [the alleged driver] doesn't have any money, then there's no recovery. You're still stuck going through IC小蓝视频 for any wage loss, treatment amounts or death benefits, which are capped,” said Phillips.
Another wrinkle that may appear in the Lapu Lapu tragedy is how the criminal prosecution plays out, said Phillips, noting there may be a defence of mental illness.
He said this could impact the victims’ recourse as well.
“Since section 116 of the Insurance [Vehicle] Act requires a ‘conviction,’ and a person who is found not criminally responsible on account of mental disorder is neither acquitted nor convicted under the law, then it is unlikely the exception would apply,” said Phillips.
Seven women, two men, one non-binary person and one child were killed at the April 26 street festival after an alleged driver drove a black Audi SUV through the crowd.
Kai-Ji Adam Lo, 30, of Vancouver, has been arrested and charged with .
Vancouver Coastal Health confirmed in an email that the suspect was under the supervision of a health-care team, compliant with treatment and on “extended leave” in accordance with the Mental Health Act.
In a prepared response from the Ministry of Public Safety and Solicitor General, IC小蓝视频 said it has established a dedicated team to support people impacted by the tragedy with pre-approved treatments and income-replacement benefits.
The maximum amount is $119,000 in annual gross income
IC小蓝视频 noted these benefits are available immediately as opposed to waiting for a settlement.
“These may include a lump-sum permanent impairment benefit, support with activities of daily living, as well as benefits covering equipment and modifications to ensure the individual’s home and vehicle are safe and accessible,” it said.
Premier David Eby, one of the architects of no-fault insurance, declined to comment on the matter.
